MAY A WRITE‑IN CANDIDATE FOR SCHOOL BOARDS WHO IS ELECTED, QUALIFY FOR OFFICE WITHOUT HAVING EXECUTED AN AFFIDAVIT THAT HE IS NOT A SUBVERSIVE PERSON PRIOR TO THE ELECTION

MAY A WRITE‑IN CANDIDATE FOR SCHOOL BOARDS WHO IS ELECTED, QUALIFY FOR OFFICE WITHOUT HAVING EXECUTED AN AFFIDAVIT THAT HE IS NOT A SUBVERSIVE PERSON PRIOR TO THE ELECTION?  MAY A WRITE‑IN CANDIDATE WHO IS ELECTED, SIGN SAID AFFIDAVIT AFTER THE RESULTS OF THE ELECTION HAVE BEEN TABULATED?

A write‑in candidate is not required to file a non-subversive [[nonsubversive]]affidavit except where the write‑in has occurred at a primary election and his name must appear upon a general election ballot.  One elected at a general election by write‑in is required to sign a written statement containing answers to such inquiries as the political subdivision determines are necessary to ascertain whether he is a subversive person.

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                                                                  January 2, 1952

Honorable Hugh H. Evans
Prosecuting Attorney
Spokane County
Spokane 11, Washington                                                                                               Cite as:  AGO 51-53 No. 202

Attention:  !ttJohn E. Calbom, Civil Deputy Prosecuting Attorney

Dear Sir:

            Receipt is acknowledged of your letter of December 17, 1951, in which you inquire whether, in the light of § 16, chapter 254, Laws of 1951, a write‑in candidate who was elected may qualify for office without having executed, prior to his election, an affidavit that he is not a subversive person and in the event the answer to the above question is no, may a write‑in candidate who is elected sign said affidavit after the results of the election have been tabulated.

            It is our conclusion that a write‑in candidate is not required to execute the affidavit that he is not a subversive person required by § 16, chapter 254, Laws of 1951, for candidates for election, but before entering upon the discharge  [[Orig. Op. Page 2]] of his office must make a written statement containing his answers to such inquiries as the political subdivision shall determine necessary to ascertain whether he is a subversive person.

                                                                     ANALYSIS

            Section 16, chapter 254, Laws of 1951, reads as follows:

            "No person shall become a candidate for election under the laws of the state of Washington to any public office whatsoever in this state, unless he or she shall file an affidavit that he or she is not a subversive person as defined in this act.  No declaration of candidacy shall be received for filing by any election official of any county or subdivision in the state of Washington or by the secretary of state of the state of Washington unless accompanied by the affidavit aforesaid, and there shall not be entered upon any ballot or voting machine at any election the name of any person who has failed or refused to make the affidavit as set forth herein."

            This section deals with persons who become candidates under the laws of the State of Washington and provides that no declaration of candidacy shall be received nor shall the name of a candidate appear upon a ballot unless he shall file an affidavit that he is not a subversive person as defined in the act.  A sticker candidate is not required to file a declaration of candidacy, nor does his name ever appear upon the election ballot, except at the ensuing general election in cases where nomination in a primary is accomplished by sticker ballots.

            InState ex rel. Murphy v. Tallman, 82 Wash. 141, 143 Pac. 874, our Supreme Court held that persons nominated by sticker ballot were not required to file declarations of candidacy.  Thus, that portion of § 16, chapter 254, Laws of 1951, requiring the non-subversive [[nonsubversive]]affidavit before the filing of a declaration of candidacy could have no application to such persons.  However, where a person is nominated by a sticker ballot and must be elected in a general election, it is our opinion that he must file the affidavit as a condition precedent to having his name appear upon the ballot since § 16, chapter 254, Laws of 1951, specifically provides:

             [[Orig. Op. Page 3]]

            "* * * there shall not be entered upon any ballot or voting machine at any election the name of any person who has failed or refused to make the affidavit as set forth herein."

            However, in the case of those persons whose names are written in at a general election there is no occasion either for the filing of a declaration of candidacy nor for the printing of their names upon the ballot; nor is it even necessary that such persons shall have taken any action to become a candidate.  When the vote is canvassed and it is found that they have been elected by sticker ballot, they are no longer candidates and the provisions of section 16 do not apply to them.

            Section 12, chapter 254, Laws of 1951, provides:

            "Every person and every board, commission, council, department, court or other agency of the state of Washington or any political subdivision thereof, who or which appoints oremploys or supervises in any manner the appointment or employment ofpublic officials or employees shall establish by rules, regulations or otherwise, procedures designed to ascertain whether any person is a subversive person.  In securing any facts necessary to ascertain the information herein required, the applicant shall be required to sign a written statement containing answers to such inquiries as may be material, which statement shall contain notice that it is subject to the penalties of perjury."  (Emphasis supplied)

            When a person elected by sticker ballot enters upon the duties of his office a political subdivision "employs" him.  InBilger v. State, 63 Wash. 457, 116 Pac. 19, our Supreme Court spoke of public officers in terms of employment:

            "* * * While, generally speaking, an officer is one employed on behalf of the government, in a strict legal sense it means an employment on behalf of the government in some fixed and permanent capacity, * * *"

             [[Orig. Op. Page 4]]

            Thus, the individual elected by sticker ballot must meet the statutory requirements for one whom the state or political subdivision employs.

            It is our opinion that section 12 is applicable to such an individual.  It will be noted that there is no specific requirement in section 12 for the filing of an affidavit such as that prescribed by section 16.  However, a written statement containing answers to such inquiries as may be material to determining whether a person is subversive must be made.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General